Chief Justice Warren E. Burger: The Court will hear the arguments first this morning in number 71-1669, Gustafson against Florida.

Mr. Russ, you may proceed whenever you’re ready.

Mr. James M. Russ: Mr. Chief Justice and may it please the Court.

My name is James Russ.

I represent the petitioner James Gustafson.

This is an action of certiorari to the Florida Supreme Court.

This is a case involving a felony conviction of the charge of possession of marijuana and the case we bring to this Court involves a search and seizure Fourth Amendment question.

The specific question is, involves warrantless body search and seizure of a motorist who was arrested on a minor traffic violation.

And the basic facts are that in January of 1969, Mr. Gustafson while driving his automobile was stopped by a Florida policeman.

He was asked for a driver’s license and when he advised the policeman, he did not have his driver’s license in his personal possession, he was placed under arrest.

Justice William H. Rehnquist: Why did the policeman stop him Mr. Russ?

Mr. James M. Russ: He stopped him because he observed him to be weaving, Justice Rehnquist.

His testimony was that he weaved three or four times across a divider line between one lane and a second lane.

Justice William J. Brennan: What time of day was it?

Mr. James M. Russ: This is approximately 1:30 to 2 o’clock in the morning, Your Honor.

In any event after Mr. Gustafson --

Justice Potter Stewart: Now, that you already have been interrupted, may I do it again just so I can understand this, I think I do that do I understand correctly that -- that in this case, you do not question the constitutional validity of the arrest?

Mr. James M. Russ: That’s correct, Justice Stewart.

We are challenging the constitutional validity of the search

Justice Potter Stewart: Yes.

So, in this case, we proceed on the premise that the arrest was upon probable cause and was constitutionally a valid arrest.

Mr. James M. Russ: Yes sir.

Justice Potter Stewart: Thank you.

Mr. James M. Russ: For the charge of driving an automobile with no valid driver’s license in his possession.

Justice Potter Stewart: Yes sir.

Mr. James M. Russ: Now, after he was removed from the automobile --

Justice Byron R. White: And a part of that is that you concede the validity of the stock --

Mr. James M. Russ: Yes, we do Justice White.

Justice Byron R. White: And then the validity of the arrest based on (Inaudible).

Mr. James M. Russ: Yes sir, yes sir.

And of course, after he told the police officer that he did not have his driver’s license with him, he was then arrested for that violation.

He was taken out of the car or he got of the car by himself and he was then spread-eagled against the police car where upon a pat-down, the police officer felt something in his coat pocket.

He put his hand into his left coat pocket and removed a box of what appeared to be Benson and Hedges cigarettes.

At this point, he put Mr. Gustafson in the backseat of his patrol car and that there was a passenger with Mr. Gustafson, Mr. Moody and the second police officer had arrived, Officer Levee.

And at this point in time he told --

Justice Thurgood Marshall: Who has the possession (Inaudible).

Mr. James M. Russ: The police officer, Lieutenant Smith.

He had physical possession.

He opened -- apparently a matter of a few minutes later in the interim -- he had advised the passenger to go ahead and drive off Gustafson’s automobile to follow them to the Police Station and then told Officer Levee to check Mr. Moody to make sure that he had a valid driver’s license.

Then when he opened up the box of Benson and Hedges and --

Justice Thurgood Marshall: Why did he open it?

Mr. James M. Russ: Curiosity, Justice Marshall, I assume.

There was no legal justification for it.

Justice Thurgood Marshall: Is it normal to arrest a man for driving without a license and put him under arrest in Florida?

Mr. James M. Russ: I think it’s normal to arrest in this --

Justice Thurgood Marshall: Think, but do you know it?

Mr. James M. Russ: I don’t know specifically.

Justice Potter Stewart: It gets back to my question.

I understood that there was no question or whatsoever in this case the way you are arguing and as to the constitutional validity of the arrest --

Mr. James M. Russ: There is no question.

Justice Potter Stewart: Normal or abnormal, that you do not question its validity?

Mr. James M. Russ: That’s right, because the State Law of Florida states that it’s an offense to drive without a valid driver’s license in your possession is sort of an inchoate offense, but there was a back door to this thing that if you appear in Court with your valid driver’s license at a later date, then the whole matter is dismissed.

Justice Lewis F. Powell: Did the automobile had the Florida license of automobiles?

Mr. James M. Russ: Justice Powell, it had the New York license on it.

In any event, the --

Justice Thurgood Marshall: I don’t understand how you can arrest a man for a crime that you can’t convict him of.

I have problems with that, can you help me?

Mr. James M. Russ: Justice Marshall, I have problems with it too but --

Justice Thurgood Marshall: Well, but why do you submit it?

Mr. James M. Russ: Well, because we think that the key issue in this case for this Court’s consideration is the matter of the scope of the search.

The issue in this case as we see it, is the scope and the intensity of a custodial body search which is made incidental to a warrantless arrest for an evidenceless minor traffic offense, limited by the reasonless clause of the Fourth Amendment.

Justice Lewis F. Powell: If the action by the police officer had been confined to a Terry-type patdown, would you be here this morning?

Mr. James M. Russ: No sir.

Justice Lewis F. Powell: So, you draw the distinction between the search and the patdown?

Mr. James M. Russ: Yes sir and we’re complaining essentially about the search, the body search, the going into the man’s pocket and the taking out of the cigarette box and the opening of the cigarette box.

Justice William J. Brennan: Are they separate things? Does the opening of the cigarette box in your submission created a different problem than going into his pocket and taking the box?

Mr. James M. Russ: No, as far as we are concerned, the constitutional wrong in this set of circumstances occurred when the police officer put his hand into the man’s pocket and took out the cigarette box.

Justice William J. Brennan: And you don’t argue that even of that were alright, opening the cigarette box was improper?

Mr. James M. Russ: Well, that is just for the compounding of the wrong, yes sir, but our essential complaint is that going into the pocket, the body search.

Chief Justice Warren E. Burger: Could you have than under a Terry search under the Terry case?

Mr. James M. Russ: No, Mr. Chief Justice, we don’t believe so.

We believe that --

Chief Justice Warren E. Burger: If you found on feeling the man’s pocket from the outside that there was a substantial package in there that was firm, do you say that he could not go into that pocket under the Terry case?

Mr. James M. Russ: Well, we say that under the Terry case, he has to have a reason to believe that what he feels is of such substance that it could qualify as a weapon.

Chief Justice Warren E. Burger: Do you think this package could have conceivably qualified as a weapon?

Mr. James M. Russ: No sir, we do not.

Justice William J. Brennan: Was it a soft Benson and Hedges pack?

Mr. James M. Russ: It was a box as I understand it, Justice Brennan

Justice William J. Brennan: Was it a hard box or --

Mr. James M. Russ: Yes sir.

Yes sir.

Justice Byron R. White: I suppose that you’ll be making the same argument if this defendant have been arrested in his home for stealing television sets and assume there’s a valid arrest to that and probable cause.

They went into the house and properly arrested the man and then took a Benson and Hedges box out of his pocket and looked in it.

Mr. James M. Russ: Well, not necessarily Justice White.

It’s our essential contention as regards to search for evidence that it is proper for the police officer incident to a lawful arrest to search for the fruits, instrumentalities and evidence of the offense upon which the arrested is based.

Justice Byron R. White: What kinds of proofs were within -- found in a Benson and Hedges box --

Mr. James M. Russ: No sir.

(Voice overlap) No, but we don’t know what the circumstances of your hypothetical theft is.

It could be -- there could have been a screw driver that was associated with the break in, there could be an invoice associated with the television.

Justice Byron R. White: On that basis, there could be a driver’s license in the cigarette box, you can argue like that?

Mr. James M. Russ: But he wasn’t charged with having a driver’s license, he was charged with not having a driver’s license.

Justice Byron R. White: I know but he may have lied about his identity like you could have found anything in the cigarette box?

Mr. James M. Russ: Well, we submit that under the Fourth Amendment --

Justice Byron R. White: Like deny the ownership of the car.

Mr. James M. Russ: We submit under the Fourth Amendment that the police officer doesn’t have the authority to search for anything.

He has the authority in a body search to search only for the fruits, instrumentalities and evidence related to the offense upon which the arrest is based.

That this was a cigarette box as it had -- that the petitioner has -- he didn’t know what it was?

Mr. James M. Russ: Well, they always refer to it in the sworn testimony as being a cigarette box, Justice Brennan.

Justice William J. Brennan: I know, after he took it out, but did he know before he took it out that it was a cigarette box?

Mr. James M. Russ: I don’t know.

Justice William J. Brennan: Did he testify as to that?

Mr. James M. Russ: The specific question was never asked of him.

Justice William J. Brennan: Because you do concede, I gather, that the patdown was proper.

Mr. James M. Russ: Yes sir.

We concede and part of our submission is that in such a situation where you have an arrest for like our case, a minor traffic offense where there is no evidence involved with the offense, there are no fruits or instrumentalities associated with the offense, that it is still proper under an extension of charity for the arresting officer for his own self protection and to aviate the problems of potential escape to patdown in a Terry-type frisk, the arrest prior to putting him into the police car of taking him to --

Justice William J. Brennan: Well, this gets back to the Chief Justice’s question and I gather under your submission.

If it had been a different form, it would have been shaped like a gun or something like that even though it turned out not to be gun but a screwdriver.

Mr. James M. Russ: Let us say it was a Peters case where the arresting or the searching officer, the frisking officer felt something hard and substantial in the man’s pocket in which he thought might have been a knife.

In that case, this Court held that that was proper for him to -- after the frisk to go into his pocket and bring out what turned to be kind of a mini burglar tool set.

Justice William J. Brennan: Well, then your case must turn on that -- when he patted this object inside his pocket not knowing what it was, it did not have the shape or form of something that might be a weapon such as (Inaudible)?

Mr. James M. Russ: Yes sir, that is our --

Chief Justice Warren E. Burger: (Voice Overlap) Then you have to say that under no conceivable stretch of imagination, this hard package of the Benson and Hedges cigarette box could not have been a small pocket-size automatic disc for example.

Mr. James M. Russ: Your Honor, as we read Terry, Sibron and Peters it’s our understanding of those cases that this doesn’t give a wide-open subjective approach on the part of the police officer that he can’t simply come to the trial court afterwards and say, “I intuitively or believe that it might possibly had been a weapon or one sort or another that this is something that is subject to objective evaluation,” otherwise, the Terry frisk is really a wide open authority to search --

Justice Byron R. White: Well, you have to get over another point though, this Terry type of stop, You concede that this was an arrest --

Mr. James M. Russ: Yes.

Justice Byron R. White: A question of search incident to arrest as the Terry patdown.

Mr. James M. Russ: Right.

Justice William J. Brennan: You’re already assuming that the only thing a person can do is -- the officer can do is to do what he does after a Terry stop.

So, here it was a valid arrest.

Mr. James M. Russ: Yes sir.

That was -- the point is that there has to be a reasonable relationship for the reason for the arrest.

Justice William J. Brennan: I thought Chimel said that you could have search the person of the arrestee and his immediate vicinity.

Mr. James M. Russ: Your Honor as we read Chimel, Chimel again in that same section of the opinion quoted from the Terry decision where this Court said that “the scope of the search must be strictly tied to and justified by the circumstances which rendered the initiation permissible.”

Justice William H. Rehnquist: Well, certainly those languages of both Rabinowitz and Preston that your opposing counsel cite that says categorically, that you can have a full search incident to a lawful arrest.

Are you asking us to overrule or disapprove that language?

Mr. James M. Russ: No sir.

We are asking this --

Justice Potter Stewart: Rabinowitz already had been disapproved?

Justice William H. Rehnquist: Not in that respect.

Justice Potter Stewart: We don’t need to do it again, do we?

Justice Thurgood Marshall: Mr. Russ, why do you think (Inaudible) knows the point that once (Inaudible).

Obviously, he was in fear of bodily harm from that package.

Why did he have to open it?

You seem to find no importance in the fact that he opened the package.

You said that it might have been curiosity.

I mean you do not put any weight on that at all?

Mr. James M. Russ: Justice Marshall, I don’t attribute to the police officer any legal authority to open the package once he takes it out of the man’s pocket.

Justice Thurgood Marshall: Why didn't you make it that point?

Mr. James M. Russ: Because I answered Justice Brennan.

(Voice overlap)No sir.

I’m simply saying that’s a compounding of the constitutional wrong that began when he put his hand in his pocket.

Justice William J. Brennan: Yes, I think you answered me earlier that you don’t argue independently of putting his hand in the pocket -- that opening the package in and of itself is a Fourth Amendment violation.

You don’t argue that?

Mr. James M. Russ: No, I say that it all falls in one package, so I am not giving it away, I am not conceding it.

I am saying that from the time that the officer put his hand in the man’s left coat pocket that the Fourth Amendment was violated from that point on thereafter.

Justice Thurgood Marshall: Even if it was a gun?

Mr. James M. Russ: No -- No, because --

Chief Justice Warren E. Burger: Then you’re judging the search by its fruits, are you not?

If it was a gun it is alright but if it is heroin, it’s not alright, is that it?

Mr. James M. Russ: No, Your Honor.

[Laughter Attempt] Let me go back over the scene again.

The point is that on the frisk, if the police -- our position is that the police officer frisked under Terry and felt what he believed to be objectively speaking was a weapon, then he have lawful authority in this minor traffic offense arrest to search further, to remove the weapon from the man’s person and to take control of it.

Chief Justice Warren E. Burger: Suppose when he opened that Benson and Hedges box, it is not a pistol, an automatic, as Justice Marshall suggested, but a folding knife, a rather common weapon that folds in these three sections of about two-and-a-half inches each.

Would you say then too that the search was not proper, unreasonable?

Mr. James M. Russ: Well, I am going back to the basic -- putting his hand on the pocket.

Chief Justice Warren E. Burger: And now we got his hand out of the pocket, he got the box out and he finds a weapon, you say that's an unreasonable search?

Mr. James M. Russ: I say that the opening of the box is unreasonable.

I say that taking the box out of his pocket was unreasonable that there’s no rational connection between taking the box out of his pocket and the arrest for not having a driver’s license in his possession.

Justice William H. Rehnquist: How about protecting himself against the possible weapon that might be concealed in the box.

Mr. James M. Russ: Mr. Rehnquist -- Justice Rehnquist, we believe that unless there’s a rational objective, showing that, what the officer feels on the frisk, is a weapon or falls in that category of an object that could be used to hurt the police officer or the arrestee or to effectuate the escape that it becomes unreasonable for him to extend the frisk into a body search.

Justice William H. Rehnquist: The officer can’t and just because he uncovers out an object that could contain a weapon, but that he cannot show in advance that probably it contains a weapon, he can’t go further into that object?

Mr. James M. Russ: That’s our position, yes sir, because our -- the answer to it is that, is it was left to the police officer’s own subjective interpretation that there might have been a weapon in whatever this object is that he feels to the outer clothing, rather than an objective standard and objective test that every Terry frisk is going to develop into a full body search.

Justice Potter Stewart: Mr. Russ, I think my brother White has already pointed out that you are kind of assuming the answer to the basic issue in this case, are you not?

The question is, when there is a lawful arrest, a lawful arrest, perfectly constitutional full arrest whether, when the offense’s is -- is an offense such as this, the arresting officer is limited to a Terry type search, that’s the basic question, isn’t it?

Mr. James M. Russ: Yes sir.

That’s our contention --

Justice Potter Stewart: Right, but instead of arguing that, you’re rather arguing that you assume that he is limited to a Terry type search and now you are arguing that a Terry type search would not permit taking that box out of his pocket which is subsidiary and somewhat different question.

But the basic question is, whether this search is limited to a Terry type search, isn’t it?

Mr. James M. Russ: Yes sir.

It’s our contention of the course that appears -- that this is within the concept of reasonableness under the Fourth Amendment that there must be a rational connection between the reason for stopping and apprehending the citizen and this invasion of his privacy.

Justice Byron R. White: But where do you keep razorblades, for example?

I mean, if you’re going to have a Terry type stop, you are going to ask to a couple of questions for a few moments.

It might be reasonable to say, if you only patdown for weapons, it might be drawn and used on the officer like a gun or something.

If you are going to put a man on the police car and take him to the station and things like that, shouldn’t you be more careful about weapons and evidence?

What about a razor blade for instance?

Mr. James M. Russ: Well, Justice White (Voice overlap)

Justice Byron R. White: -- You can keep that anywhere, can’t you?

Mr. James M. Russ: Yes.

If we are going to --

Justice Byron R. White: You may not be able to search for razor blades in the Terry type stop, but can’t search for razorblades if you make a valid arrest and put him on a police car and take him to the station?

Mr. James M. Russ: If you are going to search for razorblades, you are going to have to go right down to the very scene or environment.

Justice Byron R. White: Alright, let’s assume it gets to the station before they put him in a cell, can they search his pockets?

Mr. James M. Russ: Yes.

This is assuming that they put him on the cell, but the answer of that --

Justice Byron R. White: Alright (Voice Overlap) but they get him to the station, they’re going to book him and they’re going to take the photograph of him and can they ask him down to empty his pockets there?

Mr. James M. Russ: Not until such time as he goes from this booking stage to being an actual prisoner in the jail and of course, he certainly has the option to -- as on this case, to pose bail right there at the situation.

Justice Byron R. White: Why can’t they make him empty his pockets when they put him in the jail, put him on a cell?

Mr. James M. Russ: It was a matter of protecting the integrity of the whole jail system.

Justice Byron R. White: Because he might have a razorblades or something like that or some other what?

Mr. James M. Russ: Some other weapon or some other (Voice Overlap).

Justice Byron R. White: Some other weapon that you can’t find except by emptying the pockets?

Justice Potter Stewart: Well, other reasons come into play before a man is put on the cell and they want to take his money out of his pockets for instance and there are various other things and make an inventory out of it for the protection of his property and protection against false claims against the police where you’re taking his property and so on, there are all sort of different grounds.

Justice Thurgood Marshall: And he is necktie and his shoestring, but doesn’t have anything to do with the pack of shoe box (Inaudible).

I mean, once he has got the razorblades in the package of cigarettes, there is no way that the prisoner can use those razorblades, am I right?

Mr. James M. Russ: Yes sir.

Justice Thurgood Marshall: Well, why open up the package to look for them?

Mr. James M. Russ: Well, we don’t think that it was necessary at all to open a package Justice Marshall.

Justice Potter Stewart: On the other hand, if the policeman did find razorblades in the pack of the cigarettes, it would put him on the alert that he better do some more searching, am I correct?

Mr. James M. Russ: Yes sir, that’s true.

Chief Justice Warren E. Burger: And how is he going to --

Justice Potter Stewart: That was a very good point under that theory of opening up the package?

Unknown Speaker: (Inaudible)

Mr. James M. Russ: So, are marijuana cigarettes in this case, but to answer Justice White’s question so far as the booking at the jail, it doesn’t absolutely follow that because a man is arrested on the street that he ends up in the jail cell.

Particularly in this type of motor vehicle violation where in the worst situation as it occurred here, the man was taken from the street to the police station or as the officer testified, bail was set to the amount of $50 and under normal circumstances, he would have been released upon the posting of that $50 and there never would have been any searching, there never would have been any incarceration on a jail cell.

Justice William H. Rehnquist: Mr. Russ, what if the policeman on searching does find something that seems like a revolver and the man pulls it out and that there with the revolver finds two or three nickel packages of heroine.

May he seize those and charge the man with possession of heroin?

Mr. James M. Russ: This is following a Terry frisk --

Justice William H. Rehnquist: Right.

Following a frisk or a search, whatever you may call it in the circumstances of your man?

Mr. James M. Russ: Yes, sir.

I would concede that.

Our basic complaint is what followed after the frisk that there should not have been any further intrusion into the man’s privacy following the Terry frisk for weapons.

Thank you.

Chief Justice Warren E. Burger: Mr. Richard.

Argument of Barry Scott Richard

Mr. Barry Scott Richard: Mr. Chief Justice and may it please the Court.

I’d like to add a couple of facts to the facts as presented by the respondent.

At the outset, let me point out that the car was driving back and forth between the driving lane and the passing lane.

The defendants, the record reflects, looked through the rearview mirror and upon seeing the police officer, took evasive driving tactics.

They drove behind a grocery store and on to another street.

In the opinion of the officer in an effort and in the un-contradicted testimony of the officer, in an effort to evade him, one of the points that this Court was careful to point out in Sibron and Peters is an important factor in determining whether or not there is a mens rea.

Yes sir?

Justice Thurgood Marshall: What if any traffic violation that he committed?

Did you not stipulate that he had not committed any?

Mr. Barry Scott Richard: No, You Honor.

The police officer indicated that at the time, he saw -- there was conflicting testimony.

At one point, he said that, at the time of the weaving, he didn’t think that there was a violation that he stopped in to determine whether or not he was intoxicated.

At another point, he said that there may have been a violation, but there was no arrest for the weaving violation.

He said, he was stopping them to determine whether or not they were intoxicated when he saw the car weaving.

Justice Thurgood Marshall: Well, would marijuana make him intoxicated?

Mr. Barry Scott Richard: It may, Your Honor.

Justice Thurgood Marshall: Well, could it be that he was searching him for the evidence of marijuana?

Mr. Barry Scott Richard: It may Your Honor and we --

Justice Thurgood Marshall: Did you say, it may?

Mr. Barry Scott Richard: Yes, Your Honor.

We contend that in fact, he had the right to do that.

We submit that he have the right to search for two reasons.

One of them was for a weapon and the second one was for marijuana and with the Court’s permission, I’d like to delay my response on that so that I can deal with the questions raised by the respondent.

Let me just rapidly point out several more facts that I have not yet been brought out, which I think are important.

After attempting to evade the police officer, he was stopped and the police officer testified that he stopped him in order to determine if he was intoxicated because the car had been weaving in a suspicious fashion.

He said that after the respondent left the car, it was his impression that he was intoxicated because of his actions and because of his blurry eyes.

The officer said that it was his impression from observing him that he was intoxicated.

Another point that I think it’s important to note -- or let me answer some questions that were raised by the Court regarding the facts.

Justice Marshall mentioned and asked the question, “How can you arrest the man for a crime that you cannot convict him of?”

I think it is important to note that he can be convicted of not having a driver’s license.

The police officer had no way of knowing at the time of the rest whether or not the man had a driver’s license.

It is true that if the man had it and simply did not have in his possession that Florida does not convict, but the officer doesn’t know that until the man arrives in Court.

Justice Thurgood Marshall: Is it usual in Florida to arrest the person for a traffic violation?

Mr. Barry Scott Richard: Your Honor, the officer testified that approximately three --

Justice Thurgood Marshall: I’m not asking what the officer said.

You are speaking for the State of Florida, I’m asking what the law is.

It is permissible in Florida, it is lawful to arrest him for that purpose and I would suggest Your Honor that where the driver has an out of State license tag in his car that is not unreasonable for the officer.

Justice Thurgood Marshall: But you cannot quote me any Florida law or regulation, or anything, can you?

Mr. Barry Scott Richard: I can tell Your Honor that it is legal in Florida for the officer to arrest.

The man has committed a crime.

Justice Thurgood Marshall: And you cite what?

Mr. Barry Scott Richard: I don’t know the statistical (Voice Overlap)

Justice Potter Stewart: Did you cite on your brief about those things -- that issue isn’t in this case, is it?

Mr. Barry Scott Richard: No Your Honor, it is not.

I think again --

Justice Potter Stewart: Is it legal in Florida to do it?

Mr. Barry Scott Richard: It is conceded.

It is legal in Florida to arrest him.

It is a crime to drive in Florida.

I wouldn’t imagine that most, if not all states without a driver’s license and what’s more Your Honor, I would submit a serious crime when we consider the fact that more people die --

Justice Thurgood Marshall: Was he arrested, was he handcuffed?

Mr. Barry Scott Richard: The record does not reflect whether or not he was handcuffed Your Honor.

Justice Thurgood Marshall: Well, I ask you again, is it normal in Florida, handcuff a man you arrest?

Mr. Barry Scott Richard: I would imagine it maybe (Voice overlap)

Justice Thurgood Marshall: I give up.

Mr. Barry Scott Richard: Your Honor, I must concede to the Court that I do not have a statistical analysis of the frequency with which police officer’s arrest or handcuff.

I think that --

Justice William H. Rehnquist: I don’t think that’s involved here.

It doesn’t bother me that you do not have that statistics.

Mr. Barry Scott Richard: If I might move on, Your Honor so I don’t get hung up on something I don’t know and go on to the things that I definitely do know.

Let me point out as I said that we are submitting two things here, Your Honor that the search was reasonable first for a weapon and second, for the marijuana.

With regard to the search for a weapon, it was pointed out by Justice White and I think this is a critical point that we are not dealing here with the Terry, Sibron, Peters situation.

I think that that’s critical.

Terry, Sibron established a whole new concept and a delicate one.

It was an arrest without -- or rather a search without probable cause.

It was a search without an arrest, something this Court has never before permitted and the Court felt compelled to create some serious restrictions upon this delicate new area and we concede that point.

But here we’re dealing with something that the Court has traditionally permitted.

Search incident to a concededly, lawful arrest and that’s an important distinction.

I would also point out, Your Honors that there is a distinction here between the facts, not only dealing with the question of whether or not there was a lawful arrest, but what the officer was doing.

In the Terry, Sibron situation, the officers would deal at arms length on the street for a brief momentary questioning period with men who they had the opportunity to completely concentrate on.

Here Your Honors, we are dealing with an officer about to place a man in the backseat of a police car to concentrate on his driving and taking him under arrest of the station.

I’d also point out Your Honor, Justice Marshall asked whether there was any fear on the part of the officer.

The important point I think here is that -- and this is a point, which is raised continually in the argument of the respondent, the important point is not the nature or the purpose of the arrest, but the fact of the arrest.

Justice William J. Brennan: In other words, you suggest that this is no different and had the officer seemed this petitioner holding someone up and arrested him were attempted armed robbery?

Mr. Barry Scott Richard: Well, I would suggest Your Honor that it is certainly different.

Justice William J. Brennan: Well, it maybe different but (Voice Overlap) you’re suggesting in respect of the legality of the search incident to the arrest, it is no different?

Mr. Barry Scott Richard: That’s right Your Honor.

I would say --

Justice William J. Brennan: That’s so long as there is a proper arrest, whatever might be the offense --

Mr. Barry Scott Richard: Absolutely.

Justice William J. Brennan: -- then this kind of search is permissible, that's you --

Mr. Barry Scott Richard: Absolutely.

And I think the reason that it must be is that the officer who arrests that man for driving without a license has no way of knowing whether that same man has committed five robberies before the arrest and hence doesn’t want to be arrested.

The important point here is that he is being arrested and there’s no way of knowing how dangerous the man being arrested is and what completely unforeseeable reasons he may have.

Justice William J. Brennan: But I would suppose on your argument it’s quite irrelevant.

As long as he is making a lawful arrest, then this is a lawful incidental search without a warrant?

Mr. Barry Scott Richard: I agree, Your Honor.

Justice William J. Brennan: Alright.

Whether he’s afraid or not afraid, that is your position?

Mr. Barry Scott Richard: I agree, Your Honor.

Yes sir.

Justice William J. Brennan: Don’t say you agree.

I don’t suggest that that’s my view of it.

That’s your position. [Laughter]

Justice Potter Stewart: You said yes in answer to his question.

Mr. Barry Scott Richard: Perhaps it would be more appropriate to say yes, Your Honor, I hope the Court agrees.

Justice Potter Stewart: That’s right.

Mr. Barry Scott Richard: I think perhaps --

Justice Potter Stewart: And the reason is that, if an officer arrested somebody who he saw as an eyewitness holding another person up and searched him, the same claim could be made that no search of that person could educe any additional evidence of the holdup, is that correct?

Mr. Barry Scott Richard: Yes sir, that is our position.

Justice Potter Stewart: Same argument could be made against you that the search would have to be a limited one because nothing that could be found on that person’s pockets would give any additional evidence of that particular holdup that the officer --

Mr. Barry Scott Richard: Your Honor, this goes to the other issue, which is the search for evidence as opposed to the search for weapons which I'd like to, get in just a moment.

If I can dwell on this for one more moment, I wanted to point out that the reason this concerns me, is that the respondent dwells upon the fact that there was no fear here on the part of the officer of being injured and that this was a minor traffic violation.

And of course, in this Court -- what he is asking this Court to do, I think clearly, is impose for the first time upon search incident to arrest the new restrictions which the Court created in Sibron and Peters and Terry.

Justice Potter Stewart: Yes, but in your brief, you’re rather making the same argument it seems to me and you suggested it in your oral argument, i.e. that this particular search may have been justified because you thought the man was drunk?

Mr. Barry Scott Richard: That’s an additional reason, Your Honor.

Justice Potter Stewart: I thought your argument was and constitutionally ought to be that Justice Brennan has outlined it that when there is a constitutionally valid arrest, there can be a complete search.

Regardless of what the arrest is for (Voice Overlap) arrest of the man to take him down to the station house in a police car?

Mr. Barry Scott Richard: That is precisely what we’re arguing and I would agree with it.

Justice Thurgood Marshall: Would that go for spitting on the sidewalk?

Mr. Barry Scott Richard: Well, Your Honor, I think the important point here is that the Court, the fear that Your Honor raises is that the officer will use the arrest as a ruse to search or to harass.

Justice Thurgood Marshall: I didn’t say a thing about that.

I say, would that allow me if the policeman says I spit on the sidewalk, walk after me, arrest me and search me?

Mr. Barry Scott Richard: If Your Honor there was a valid statute and it were lawful to arrest the spitting on the sidewalk and the officer lawfully arrested the person and placed him in the squad car to take him to the station, I think it will be perfectly reasonable, Your Honor.

I think the significant --

Justice Thurgood Marshall: Well, what protection do I have?

Mr. Barry Scott Richard: You need not to spit on the sidewalk for one thing, Your Honor.

Justice Thurgood Marshall: Well, I didn’t say I spit.

I said, I was arrested for spitting.

Mr. Barry Scott Richard: Well, of course --

Justice Thurgood Marshall: There is a difference you know.

Mr. Barry Scott Richard: Well again, then Your Honor -- I think what Your Honor is saying is that you fear that the officer will use an alleged violation as a ruse to search and my response is that the Courts have the obligation to determine that factor and as a matter of fact the Florida Supreme Court in this case cited several cases in which the State of Florida has overturned convictions based upon the fact that they found that the arrest was a ruse and that in fact, there was no good faith lawful arrest.

Justice Thurgood Marshall: I read that.

Mr. Barry Scott Richard: And I think, Your Honor that this is the obligation of the Courts to determine and when they determine this --

Justice Thurgood Marshall: But why do you ask for such a broad general rule when you don’t need to?

Mr. Barry Scott Richard: Your Honor, I think, I’m not asking for a rule any broader than the Court has laid down before and the reason I think we need to is --

Justice Thurgood Marshall: Well, which one did this Court lay down that deprived the spitting on the sidewalk.

I can give it to the other with Shuffling Sam which is a different case.

Mr. Barry Scott Richard: Admittedly Your Honor, I know of no incidence in which the Court has addressed itself to the question of driving without a license.

Justice Thurgood Marshall: But it did address that this is the only conflict?

Mr. Barry Scott Richard: I think, Your Honor -- I think, Your Honor that the Court of course can go to the question of whether or not a crime is to incidental to warrant an arrest but --

Unknown Speaker: (Inaudible)

Mr. Barry Scott Richard: Okay, Your Honor.

Let me just conclude with one sentence then and that being that I think the intent of this Court in Terry and Sibron and Peters was to give the police officer a broader flexibility in protecting himself from hazards and I think, if this Court were now to impose the restrictions in Terry and Sibron and Peters on the search incident to arrest, the overall result would be precisely the opposite.

The officer would be faced with a much more hazardous situation than he ever had prior to Terry and Sibron.

And I think a situation, which certainly is not warranted by the statistics which this Court cited in those cases and in the Adams case regarding assaults on police officers, particularly when they approach automobiles.

Your Honors, if I might then move on to the second point in our argument and again, I think it's not necessary since I think that first point sufficiently justifies the search in itself.

But if I might move on to the second one, we think in addition that the officer here was entitled to search for intoxicants, and I would remind the Court again, respectfully that the record clearly reflects by un-contradicted testimony that the officer saw the defendants, saw the respondents, weaving back and forth on the highway at 2 a.m. in the morning, that upon his approach behind them, they attempted to evade him by leaving the highway, driving behind an alley in the back of a grocery store to another street.

And then when the respondent left his car, he was in the impression of the officer intoxicated, blurry eyed and by other actions, intoxicated.

These factors have been traditionally upheld as sufficient probable cause to arrest for intoxication.

I think that it is important here to note something that the Florida Supreme Court said.

They said that, “In today’s proliferation of illegal drug use which affects the faculties, checking only for liquors is no longer adequate.”

I would suggest, Your Honors that that point is well taken, particularly where the officer smelled no alcohol, he had the right to attempt to find other intoxicants, including marijuana and there’s no place more reasonable to search for marijuana cigarettes than in a cigarette box.

We’re dealing here with a serious hazard on the streets of a city and I know of no way, Your Honors in which a police officer and I would point out that in all of the recent cases, Adams and Terry and Sibron and Peters, this Court has reflected its concern --

Justice William J. Brennan: Well, isn't the difficulty with this argument that he was not arrested for intoxication or whatever you may want to call.

He was arrested only for not having a driver’s license.

So, this then again doesn’t it has to turn on the scope of a search incident to a lawful arrest for whatever reason he may have been arrested as long as the arrest was lawful?

Mr. Barry Scott Richard: The critical point, Your Honor I think is that there was probable cause to arrest him for intoxication and I think Justice Harlan made an excellent point in Peters in this regard, Your Honors when he point --

Justice William J. Brennan: I know but we’re not -- we’re concerned here as I understood it whether a search is incidental that's claimed and indeed conceded to a lawful arrest, namely, an arrest for not having a driver’s license?

Mr. Barry Scott Richard: Yes, Your Honor.

Justice William J. Brennan: Isn't that what this case is and isn't that what we have to decide?

Mr. Barry Scott Richard: Well, I think two things, Your Honor.

That’s the first thing and I think that the State ought to prevail on that, but the second point which was made in Peters in the concurring opinion was that it doesn't matter whether he in fact makes the arrest before he searches so long as there is a probable cause to make the arrest.

Justice Harlan’s point was that the man can’t be heard to come before this Court and say, my conviction should be reversed because he didn’t arrest me before he searched me even though he arrested me afterwards, even though he had probable cause to arrest me.

Now, Your Honors, the same point exist here assuming the probable cause existed to arrest for intoxication and assuming that he searched based upon the probable cause, even though he may have used the more expedient route of arresting for not having a driver’s license, he didn’t have to re-arrest the man for another crime he was already arrested.

The important point here is not whether or not he arrested him for two things, but whether or not he arrested him -- whether or not he had probable cause to arrest him for intoxication.

Justice Potter Stewart: You’re making this argument only if we reject your broader argument, aren’t you?

Mr. Barry Scott Richard: Of course Your Honor.

This argument is unnecessary for Court never need to get to this argument.

Of course, Your Honor --

Justice Potter Stewart: Are you inviting us to say that the law is that the scope of the arrest depends upon the particular evidence in a particular circumstances of what the officer saw before you arrested him.

Mr. Barry Scott Richard: I think, Your Honor, I’m really saying that this is only an issue of incident to this given case --

Justice Potter Stewart: Right.

Mr. Barry Scott Richard: I think this Court has always recognized that the question is not when the technical arrest took place, but one of the probable cause to arrest existed in exigent circumstances as here where you can’t go for a warrant and I don’t really think there’s a constitutional issue to be changed here.

All I am saying to the Court is, should it disagree with the State’s position on the constitutional issue, the first issue --

Justice Potter Stewart: In any of event in this particular case there was (Voice Overlap)

Mr. Barry Scott Richard: In this given case, the conviction should be upheld.

Justice William J. Brennan: That is a suggestion that we do not have to reach the constitutional issue in the first place.

If you’re right on the second, we can sustain this conviction?

Mr. Barry Scott Richard: Yes, Your Honor.

Justice William J. Brennan: Without reaching the constitution?

Justice Potter Stewart: It’s still a constitutional issue.

Mr. Barry Scott Richard: You would have to reach the constitutional issue and the case which has been taken in tandem where there was no, concededly no basis for searching for evidence and we would submit that even in that case, the search was reasonable for weapons.

So, the issue would have to be raised in one of these cases and met.

Justice William J. Brennan: You mean the next?

Mr. Barry Scott Richard: Yes Your Honor, of course if the issue is raised and met in the next one and if the Court agrees with our position then it need not go to the second issue in this given case.

Chief Justice Warren E. Burger: Thank you Mr. Richard.

Mr. Russ, you have about seven minutes left and let me begin with a question to you.

If in the circumstances of this stop and arrest, in feeling the pocket, he had felt the same package and had withdrawn it and found that it was a small flask in which there was some vodka or whiskey, let’s assume vodka because he said he smelled no whiskey here, would that bottle of vodka, flask of vodka be admissible in evidence?

Mr. Barry Scott Richard: In this specific case, I would say no Your Honor because I respectfully disagree with the attorney for the State of Florida as to what the record shows in this case on this question of intoxication.

And my reading of the record and this intoxication claim has been raised by the State of Florida for the first time in its brief before this Court after we’ve been to the Intermediate Court of Appeals and the Florida Supreme Court.

The record clearly shows that this police officer’s attention was drawn to this automobile by the fact that it weaved very slightly over a divider line, three or four times in the course of three quarters of one block that he thereafter followed this car for another six blocks, having already made a determination that he was going to stop the car because of the weaving.

And everything he saw about the man, the way he get out of the car, the way he stood, the way he smelled, the way he walked, the way he conducted himself objectively showed that the man was sober.

Chief Justice Warren E. Burger: Well now, when he found -- if he found in a hypothetical question, the small flask of vodka, would there not be some connection between the flask of vodka and the weaving or could not the Courts find that there was some connection between the two?

Mr. Barry Scott Richard: I would say this that under our fact plotted here that he arrested the man for no driver’s license and then had the Terry patdown, he felt the flask.

If he could reasonably and objectively say, I earnestly believe that that was a weapon of some sort that could be used to hurt me or could be used to effectuate an escape, then I would concede that he could thereafter go into the pocket and take out the flask.

Now, whether he could thereafter open it and determine what was inside, I would say no.

That he had satisfied the element of self-protection by going into the pocket and removing what he honestly believed to be the weapon.

Chief Justice Warren E. Burger: But you conceded that it would be admissible in evidence against him?

Mr. Barry Scott Richard: I do not concede that he would thereafter have the constitutional authority to open the flask and determine what was inside it without a warrant.

Chief Justice Warren E. Burger: What do you want to do with that flask while this fellow is being tried, just to impound it somewhere and give it back?

Mr. Barry Scott Richard: No, I think he could go to a magistrate in a Court and simply say, I’ve seen this man drive this way, I’ve taken this from his pocket under a lawful frisk and I know ask for a Court approval upon a showing of probable cause under oath to open it and inquire what its contents are.

To just settle on this intoxication argument, I would reiterate by saying that throughout the testimony of the police officer, it shows both by his testimony and by his actions the fact that he didn’t arrest him for driving while intoxicated, the fact that he never searched the automobile for any evidence of intoxicants.

The fact that he testified under oath that he didn’t have enough evidence to charge him with the most minor of all offenses which was careless driving by weaving.

They raise the argument now raised by the State of Florida that this search can be justified under the theory of intoxication.